I am a Senior Political Contributor at Forbes and the official 'token lefty,' as the title of the page suggests. However, writing from the 'left of center' should not be confused with writing for the left as I often annoy progressives just as much as I upset conservative thinkers. In addition to the pages of Forbes.com, you can find me every Saturday morning on your TV arguing with my more conservative colleagues on "Forbes on Fox" on the Fox News Network and at various other times during the week serving as a liberal talking head on other Fox News and Fox Business Network shows. I also serve as a Democratic strategist with Mercury Public Affairs.

The U.S. Supreme Court Allows New Challenge To Obamacare To Go Forward

Under the heading of “it’s not over until it’s over”, the United States Supreme Court has vacated a decision by the Fourth Circuit Court of Appeals, ordering the appellate court to hear arguments on the constitutionality of two key provisions of the Affordable Care Act.

The two issues, which could lead to yet another SCOTUS review sometime during the 2013-2014 court session, involve a challenge to the employer mandate—requiring that employers with 50 or more full-time employees provide health insurance to its workers or pay a fine—and the contraception mandate requiring that health care benefits include a contraceptive benefit without the need for a co-pay.

The Court’s ruling was in response to a request by Liberty University—the Christian educational institution founded by Reverend Jerry Falwell—to force the 4th Circuit to give the university its day in court after the 4th Circuit dismissed the action last year, refusing to hear substantive claims and arguments in support of Liberty’s position. The 4th Circuit’s reasoning for tossing the case was grounded in the Anti-Injunction Act—the tax law that requires that a tax actually be paid before a challenge can take place. While this was one of the issues raised in this year’s challenge to Obamacare before the Supreme Court, SCOTUS quickly disposed of this as an issue that would have prevented the case from moving forward, thereby allowing the Supremes to get into the more substantive issues.

Liberty’s employer mandate claim is based on the argument that Congress overstepped its constitutional boundaries with respect to this provision of Obamacare. The university additionally is arguing that requiring it to provide the contraceptive benefit violates its right to freely exercise religion.

Interestingly, the Obama Administration chose not to challenge the effort by Liberty to get the case before the 4th Circuit, noting that the issues raised by the university had not been adjudicated by the Supreme Court in its landmark decision.

However, the administration’s lack of concern might have more to do with the fact that the 4th Circuit is one of the most liberal appellate courts in the nation and had sent signals during the initial action that they would be more likely than not to side with the Obama Administration on the issues raised by Liberty had they decided to actually hear the case.

Were Liberty to succeed in its lawsuit, a major part of the Affordable Care Act—the employer mandate—could be cut from the law. Further, the controversial requirement involving contraception would be placed in doubt. While a victory by Liberty is unlikely at the appellate level, a loss by Liberty—and it’s co-appellants—would likely bring a request that the U.S. Supreme Court take up the matter during next year’s session.

While many legal scholars expect that SCOTUS would be reluctant to jump back into the Obamacare fray—particularly given the fact that the law would be in full effect by the time the Court would likely get to the matter late in the 2013-2014 session— a decision to hear the matter would present Chief Justice John Roberts with an opportunity to square his credentials with conservatives who have yet to forgive his initial Obamacare ruling.

Post Your Comment

Post Your Reply

Forbes writers have the ability to call out member comments they find particularly interesting. Called-out comments are highlighted across the Forbes network. You'll be notified if your comment is called out.

Comments

“…there is nothing in the law that will tell doctors how to heal their patients”? Maybe so, maybe not. But one thing is an undeniable fact – by mandating that everyone have health care or pay a penalty is nothing more than the government’s ever exapanding ability to control the private choices made by individuals about their own bodies – all in the name of fairness. The government now has the authority to control virtually every part of my personal life – what I eat, what I drink, whether I exercise, the activities that I engage in – anything that effects my health. After all, why should I be allowed to make unhealthy choices that will thereby burden everyone else in the system? It will start out as “surcharges” attached to certain choices, like it already does for indoor tanners. That alone is a loss of freedom. But it won’t stop there. And why should it? Why not help the system even more by prohibiting certain “unhealthy” behavior like BigMacs, sodas? Why not further help the system by mandating that each individual excercise at the gym at least “x” amount of hours a week?

Before Obamacare the government did not have the authority to penalize and/or mandate such choices (freedoms). If you agree that this loss of freedom is a necessarily evil to assuring every citizen health care, fine. But it would be intellectually dishonest to say that wanting the government to have total control over such personal choices is keeping with the liberty traditions of this country. What Ray Downen wants is a country where those traditions continue. You apparently don’t. There is the difference. While you may be a “patriot” of the America you seek we are “patriots” of the America that was. We want no part of your vision.

Very dramatic…but complete nonsense. How, exactly, has the government acquired the right to tell you what to eat, when to exercise, etc., etc., because a law was passed requiring you to take responsibility for your health care? The speech has a wonderful right to it but its complete crap. What you don’t seem to get is that mandate is just a word for ‘law’ – we’ve been a nation of laws since our beginning. The government once mandated that every man in the nation purchase a weapon. State governments have mandated the purchase of automobile insurance for anyone who owns a car for a long time. The government has mandated civil rights by requiring people of all color to be served at restaurants. The list of mandates goes on and on and on. Now, you may not like this, but it certainly negates your nonsense that you are trying to protect an America that ‘was’ because these mandates have been around for quite awhile now. You’ve got a problem with a tax being charged on indoor tanners? Well that old America you so long for has been taxing behavior since its very beginning. Is that the ‘vision’ you are protecting. The America you so long for has required me to pay for your health care when you show up uninsured in an emergency room since Ronald Reagan made that the law. Is this the America you want to protect? The America you so long for once allowed children to work in the fields 50 yours a week. You’d like those days to come back, yes…so long as it isn’t your children, of course. You see, while you make a great speech, you don’t even understand the history and reality of the nation you think you so badly want to return to. But then, you probably also want to return to a time when people died in their thirties and there was no electricity, etc, etc., etc. Ah…the good old days.

First, if I offended you I apologize. It was neither my intent to be “dramatic” or offensive. I’m not sure what qualifies my post as a “speech” but that wasn’t intended either – I am a Chief Public Defender in Georgia and so I have a sore spot anytime I see the government expanding its authority over individuals.

My desire to keep America as it was is qualified in my post as being within the context of “liberty traditions”. That is to say, the traditions of personal freedoms this nation has stood for. To the extent America has ever failed to live up to that standard, I oppose (to child labor you could have added slavery, second-class citizenship to women, treatment of Native Americans, etc.). To say that since I value the America that was I must necessarily cling to every past sin we committed is a straw man argument and unworthy of you as a contributor to Forbes. Do you support child labor laws because you support Obamacare laws?

Moreover, because I oppose the mandates of Obamacare does not mean that I am required to support or defend every previous and current mandate the government imposes. Obamacare did not create government overreach, it only adds to it. And, incidently, no one is required to drive a car or else pay a penalty for not doing so.

Like the inexcusable examples you mentioned, Obamacare does not fit within the liberty traditions this country has, at least officially, stood for. It puts everyone in the same bowl, thereby giving government the authority to dictate such personal choices I mentioned. I did not say the government currently controls decisions about what I eat, etc. I said, correctly, that Obamacare now gives the government the unprecedented authority to make such mandates (laws). There is no principled difference between a penalty for tanners and a penalty for those that eat fast food, etc.

Rather than implicitly deny you favor changing the country in such fundamental ways you perhaps should embrace it. President Obama certainly does.

I wasn’t offended in the least. You must be new here! While I didn’t buy your comment at all, it was polite so, no need to worry about offense. Now, this comment is considerably different. I completely agree that one can value America without defending past sins-however, if you review your original comment it was the past sins that you appeared to be missing. But I do disagree that Obamacare is not within the traditions of the nation. We have a long and admirable history of using the collective power of us all to benefit our fellow Americans. That is what Obamacare seeks to do.

New here, indeed! But you must admit, your usage of words like “nonsense” and “crap” in responding to my original post does seem like the overheated language of someone offended. I’m glad you weren’t.

Two things. First, what line(s) in my original post appeared to show me as missing the prior sins of our nation? Second, I agree that we have a long and admirable history of shared sacrifice for the benefit of us all. But I am unaware of any government program that mandates participation and thereby gives the government a comparable scope of authority over the personal choices of every American. It isn’t that the stated goal of Obamacare is to control and dominate such intimate freedoms. Rather, these freedoms are put in danger as collateral damage; the unintended consequences of Obamacare’s method of providing health care to all.

As I said in my original post, if you and others see that as a necessary evil to ensure everyone has some sort of health care then I understand that. What I don’t understand is acting as if such a system is not a radical and fundamental change in the role government plays in the lives and personal freedoms of each and every American.

With all due respect to Liberty University, they clearly need to actually read P.L. 111-148 (The Patient Protection and Affordable Care Act). Apparently, they obviously do not know that an opt-out option already exists and can be found in Section 1555 of the law. This section clearly says that individuals and businesses do not have to participate in any insurance program and they will not be penalized if they do not. I have written a post on this (with language from Section 1555) and it can be found here: http://medaccessforamerica.com/breaking-news-health-care-reform/

I hate to do this to you, as you appear to be significantly invested in the notion that you have discovered something that everyone else in the nation has missed but I’m afraid you have not. Section 1555 does not say that nobody has to participate in getting health insurance coverage- it says that nobody is required to join one of the federal health insurance programs that are created by the law. What many people do not know is that there is a federal insurance policy option that is created by the ACA that can compete, in certain circumstances, with a state offering. That is what this provision refers to—the law does not require that you purchase a federally offered insurance program, but it does require that, except for those who are exempt, they must have health insurance or face the penalty. Did you really imagine that the Supreme Court just missed this provision? Really?